Author: BBP

When buying or selling a business, the question of price is often the most contentious point. Sellers typically aim for all-cash transactions, hoping to receive the full value upfront. However, in middle-market business deals, it’s common for partial seller financing to be a necessary element. Interestingly, sellers who insist on an all-cash offer may end up with a lower price than they would if they were open to other deal structures.

Even buyers with the ability to pay in full may prefer to negotiate a deal where some portion of the price is deferred. This might be in the form of a note or an earnout. Buyers feel these strategies give them leverage should the business not perform as promised. 

For example, an earnout ties part of the payment to future business performance. Buyers often argue that if the business is as represented, there should be no issues with this arrangement. On the other hand, sellers typically feel that they’ve already taken on significant risk while managing the business and are reluctant to continue assuming risk once the transaction is complete.

Are there ever circumstances where an earnout or other deferred payment structures can benefit both parties? This does happen on occasion. Consider a business that has invested considerable time and money into developing a new product but has just launched it when the business is sold. In this case, a portion of the price could be deferred until the new product begins generating revenue. This would ensure the seller is compensated for the investment made. This kind of deal structure allows both the buyer and seller to align their interests for mutual success.

All of this is to say that often price differences may seem like a dealbreaker. However, there are several ways to bridge the gap between buyer and seller that can lead to a successful transaction. 

Below are a few strategies that can help close the deal:

• Real Estate Flexibility – If the sale originally included real estate, the seller might choose to lease the property to the buyer instead of selling it outright. This reduces the purchase price by the value of the real estate and can still offer the seller a steady stream of rental income.

• Partial Acquisition with Future Purchase Option – A buyer could initially acquire less than 100% of the business and have the option to purchase the remaining shares in the future. For example, the buyer might acquire 70% of the company’s stock, with an option to purchase an additional 10% each year for the next three years based on a predetermined formula. This arrangement allows the seller to continue benefiting from the business’ potential growth.

• Royalty Payments Based on Performance  – Instead of an earnout, a royalty structure could be implemented, where payments are made based on revenue, gross margins, or even EBITDA (earnings before interest, taxes, depreciation, and amortization). Royalty payments are often easier to negotiate than earnouts, as they are tied to measurable performance. In that way, they are more predictable.

• Carving Out Assets – In some cases, the seller may own assets that may not necessarily be tied to the core business, such as personal property or non-business real estate. These assets can be carved out of the sale, reducing the overall purchase price and making the deal more attractive to the buyer.

While these strategies won’t solve every price discrepancy, they can be very beneficial and serve as creative solutions that bring both parties closer to an agreement. The ability to structure a deal that works for both the buyer and the seller requires a combination of time and expertise. Sometimes a little creativity is also involved. 

Copyright: Business Brokerage Press, Inc.

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When starting a business with a partner, whether it’s a friend, family member, or colleague, people often find that it’s tempting to skip formalizing things with a written agreement because there is a level of trust already in place. However, even the best relationships can face challenges when money and business decisions come into play. 

A partnership agreement is a critical document that can protect both parties and prevent future misunderstandings. By clearly defining the terms of your partnership upfront, you set your business up for stronger and more streamlined collaboration.

This legally binding document outlines the roles, responsibilities, and expectations of each partner. Without one, you risk facing disputes down the line. This could be over everything from profit sharing to decision-making. This agreement is essential for clarifying ownership, profit distribution, and conflict resolution. It can help prevent a lot of headaches down the road. 

Key Components of a Partnership Agreement

• Ownership and Profit Sharing:
  • The first thing your agreement should address is ownership structure. Who owns what percentage of the business? It’s important to clarify this at the outset to avoid confusion later.

• Roles:
  • Clearly define each partner’s role in the business. Having a clear understanding of duties helps avoid overlap and ensures that everyone knows what’s expected of them.

• Decision-Making:
  • Another essential aspect of the partnership agreement is how decisions will be made. Will you make decisions together, or will you rely on a majority vote? Whether it’s day-to-day operations or major business moves, outlining how decisions will be made helps keep the business running smoothly.

• Financial Considerations:
  • It should come as no surprise that money is often at the root of business disputes. That’s why it’s vital to address financial matters in detail. For example, if the business needs additional capital, who will contribute, and how will that be managed?

• Exit Strategy:
  • An often overlooked but important section of the partnership agreement is how to handle a partner leaving or selling their share. This can prevent conflict if one partner wishes to exit the business or if the partnership dissolves for any reason. You want to make sure both parties are protected in advance.

• Dispute Resolution and Contingencies:
  • It’s also important to set guidelines for handling disputes. What happens if a disagreement arises that cannot be resolved internally? Consider specifying how conflicts will be addressed. This could be through mediation or arbitration.

While it may be tempting to draft your own partnership agreement, working with a lawyer is a smart investment. A legal professional can ensure your agreement is comprehensive and legally sound, preventing issues that might arise from poorly drafted terms. They can also help tailor the agreement to suit your needs. Creating a detailed partnership agreement may take time upfront, but it’s an investment that will pay off in the long run. 

Copyright: Business Brokerage Press, Inc.

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When it comes to mergers and acquisitions (M&A), there are several common misconceptions that can impact the success of a deal. These misunderstandings often stem from oversimplified assumptions about the process. However, navigating the complexities of a deal requires careful attention to detail. Below are five important considerations to keep in mind during a mergers and acquisitions transaction to help avoid costly mistakes and ensure a smooth transition.

Negotiations Don’t End After the Letter of Intent (LOI)

One of the most widespread misconceptions is the belief that negotiations are over once both parties sign the Letter of Intent (LOI). While the LOI marks an important milestone in the process, it is by no means the final step in the negotiation. In fact, many critical details remain to be hammered out during the due diligence phase and beyond. Issues that may have been overlooked during initial discussions often come to light. The LOI is essentially a starting point, not the finish line. Therefore, it’s essential to remain open to continued negotiation until the final purchase agreement is in place.

Taking Seller’s Debt Into Account 

Another key consideration is understanding that the seller’s debt may not always be negotiable. Some buyers assume that they can exclude a company’s liabilities from the transaction, but in many cases, those debts must be accounted for as part of the deal. 

Whether or not debt will be included as part of the purchase price depends on the specifics of the transaction and the terms negotiated. Buyers should be prepared for the possibility that assuming debt could be part of the agreement. It’s important to thoroughly assess the company’s financial health during due diligence.

All Offers May Not Be Legitimate

It’s easy to assume that any offer received is from a serious buyer with the necessary funds to complete the deal. However, many offers are made by parties who do not have the financial resources to back them up. The end result is that this can waste valuable time and derail progress in the search for a legitimate buyer. Sellers should always vet potential buyers carefully and ensure that they have the financial capacity to follow through on their offer. Only after this vetting should they proceed with negotiations.

The Importance of Working with Professionals 

Some business owners may think they can handle the sale of their company on their own without a professional team, but going it alone is rarely advisable. Engaging experts such as M&A attorneys, business brokers, or investment bankers is critical to navigating the complexities of the process. 

Your team can provide valuable insights, ensure the transaction proceeds smoothly, and protect against common pitfalls. Companies working with experienced professionals can often achieve a higher transaction value, sometimes as much as 20% more than those who attempt to sell independently. A deal team also frees up time for the owner to continue running the business, rather than getting overwhelmed and derailed by the nuances of the deal.

In conclusion, dispelling common misconceptions can significantly improve the likelihood of a successful transaction. Whether buying or selling, working with experienced professionals and being aware of potential pitfalls will help ensure that the deal unfolds smoothly and delivers optimal results. 

Copyright: Business Brokerage Press, Inc.

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